Digital Commons Network^™

Purpose Proposals, Jill E. Fisch

The University of Chicago Business Law Review

Repurposing the corporation is the hot issue in corporate governance. Commentators, investors, and increasingly issuers, maintain that corporations should shift their focus from maximizing profits for shareholders to generating value for a more expansive group of stakeholders. Corporations are also being called upon to address societal concerns—from climate change and voting rights to racial justice and wealth inequality.

The shareholder proposal rule, Rule 14a–8, offers one potential tool for repurposing the corporation. This Article describes the introduction of innovative proposals seeking to formalize corporate commitments to stakeholder governance. These “purpose proposals” reflect a new dynamic in the debate over stakeholder …

Victims As Instruments, Rachel J. Wechsler

Faculty Publications

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court's 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on "testimonial" hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims' participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims through …

Lessons Of The Past And The Humanitarian Outreach Of Poland To Ukrainian Refugees, Karin Mika

Law Faculty Articles and Essays

The reaction of Poland and its people is a refreshing departure from the historic blood rivalries of the past. This is similarly true of both Romania and Hungary; however, it is Poland that has absorbed the majority of Ukrainian refugees and Poland that has the most historically contentious relationship with Ukraine. Poland’s current humanitarian efforts with respect to its Ukrainian neighbors is evidence that some lessons have been learned from the past. Perhaps there is hope that some of the centuries old blood feuding can come to an end and countries can better work toward cooperative relationships in the future.

Overcoming Toxic Polarization: Lessons In Effective Bridging, John A. Powell

Minnesota Journal of Law & Inequality

No abstract provided.

Constitutional Law—Fourteenth Amendment And Fetal Personhood—Established Injustice: American Abortion Jurisprudence And The Irreducible, Geoffrey "Chip" Gross

University of Arkansas at Little Rock Law Review

No abstract provided.

Lying At Plea Bargaining, Thea Johnson

Georgia State University Law Review

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders and the paradox it presents for those who care about creating a fairer criminal legal system. The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for—and sustains—the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining by organizing the types of lies into three categories: lies about facts, lies about law, and lies …

Abstaining Equitably, Fred O. Smith Jr.

Notre Dame Law Review

The doctrine of Younger abstention—which counsels federal courts not to interrupt ongoing state criminal proceedings—balances dueling considerations. On the one hand, the doctrine preserves federal courts’ ability to exercise Congressionally conferred, properly invoked jurisdiction to prevent irreparable violations of the federal constitution. On the other, the doctrine provides space for autonomous state courts to carry out their traditional role in the realm of criminal justice. This Essay identifies four central features of the Younger doctrine that maintain this balance. By protecting these features, federal courts can ensure that Younger remains a doctrine of equitable restraint, instead of inequitable abdication.

First, …

State Constitutional Law Declares Its Independence: Double Protecting Rights During A Time Of Federal Constitutional Upheaval, Scott L. Kafker

UC Law Constitutional Quarterly

No abstract provided.

History And Tradition Or Fantasy And Fiction: Which Version Of The Past Will The Supreme Court Choose In Nysrpa V. Bruen?, Saul Cornell

UC Law Constitutional Quarterly

No abstract provided.

Paper Mills Research Report [English], Committee On Publication Ethics, Stm

Copyright, Fair Use, Scholarly Communication, etc.

Executive summary

The subject of paper mills is currently being widely discussed by many stakeholders across the research publishing landscape. This report aims to give an overview of this topic, to explain how paper mills work, why they work and what we can collectively do about it. We have also undertaken a study of data submitted from a variety of investigations by leading publishers to get a sense of the scale of the problem. This paper concludes that the submission of suspected fake research papers, also often associated with fake authorship, is growing and threatens to overwhelm the editorial processes …

In Need Of Better Material: A New Approach To Implementation Challenges Under The Idea, Annie Kors

University of Chicago Law Review

The Individuals with Disabilities Education Act (IDEA) provides a substantive guarantee to a “free appropriate public education” (FAPE) to students with disabilities. The education is to be provided “in conformity with” an “individualized education program” (IEP): an educational plan for the student that is created through a statutorily defined process. Scholars and courts have focused tremendous attention on the level of educational quality that an IEP must offer to meet the IDEA’s requirements. But the creation of an adequate plan is, of course, not the end of the story; the school district then has to implement the plan. This leaves …

Principles Of Home Rule For The 21st Century, National League Of Cities

North Carolina Law Review

No abstract provided.

Redemption Localism, Daniel Farbman

North Carolina Law Review

No abstract provided.

The Relational Robot: A Normative Lens For Ai Legal Neutrality — Commentary On Ryan Abbott, The Reasonable Robot, Carys Craig

Articles & Book Chapters

Artificial Intelligence (AI), we are told, is poised to disrupt almost every facet of our lives and society. From industrial labor markets to daily commutes, and from policing tactics to personal assistants, AI brings with it the usual promise and perils of change. How that change will unfold, however, and whether it will ultimately bestow upon us more benefits than harms, remains to be determined. A significant factor in setting the course for AI’s inevitable integration into society will be the legal framework within which it is developed and operationalized. Who will AI displace? What will it replace? What improvements …

Liberalism, Catholic Integralism, And The Question Of Religious Freedom, Xavier Foccroulle Ménard, Anna Su

BYU Law Review

This Article investigates new Catholic integralism and its critique of liberalism and aims to answer whether a liberal idea of religious freedom is possible under an integralist regime. To do so, we first sketch the respective views of liberalism and Catholic integralism on each other, with an emphasis on integralism. For integralism, liberalism is not merely a political phenomenon, but a comprehensive worldview with hidden metaphysical and theological implications. Integralism views the function of political rule as ordering human beings to their final cause. We specifically delve in foundational Catholic principles to guide rulers when governing—prudence and subsidiarity—to establish how …

Racial Justice And Peace, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen J. Pita Loor

Michigan Law Review

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …

Law In, Law Out: Legalistic Filter Bubbles And The Algorithmic Prevention Of Nonconsensual Pornography, Daniel Maggen

Cardozo Law Review

In 2019, Facebook announced that it had begun using machine-learning algorithms to preemptively screen uploads for nonconsensual pornography. Although the use of screening algorithms has become commonplace, this seemingly minor move from reactive to preemptive legal analysis–based prevention—this Article argues—is part of a groundbreaking shift in the meaning and effect of algorithmic screening, with potentially far-reaching implications for legal discourse and development.

To flush out the meaning of this shift, the Article draws on the filter bubble theory. Thus far, the phenomenon of filter bubbles has been synonymous with personalized filtering and the social polarization and radicalization it is prone …

Justice As Fairness: A Rawlsian Perspective In Compensating Regulatory Land Takings, Edward Ti

Research Collection Yong Pung How School Of Law

Purpose: The purpose of this paper is to articulate the inherent unfairness in compensation outcomes between landowners whose land is physically taken versus those whose land is regulated. Using Rawlsian theory as the normative standard of “fairness as justice”, the paper argues that both physical and regulatory takings should be compensated. Design/methodology/approach: Most jurisdictions invariably provide market price compensation when land is physically acquired. When land is not physically taken but merely subject to regulation, however, there is no corresponding need to compensate, even where the economic loss suffered by the landowner is the same. Adopting Rawlsian theory, this paper …

Strangers In Their Own Land: A Survey Of The Status Of The Alaska Native People From The Russian Occupation Through The Turn Of The Twentieth Century, Jon W. Katchen, Nicholas Ostrovsky

Alaska Law Review

The federal government's scattershot treatment of Alaska Natives has long created confusion over the legal status and rights of Alaska Natives and Alaska Native entities. This confusion was center stage in the recent Supreme Court case, Yellen v. Confederated Tribes of the Chehalis Reservation, involving "Indian Tribe" entitlement to CARES Act relief funds. To better understand the reason uncertainty remains after more than 150 years since the purchase of Alaska from Russia, and more than sixty years after Alaska's statehood, we must look to the unique history of Alaska Natives. Starting in the mid-1700s, this Article surveys the laws …

Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith

BYU Law Review

No abstract provided.

Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider

BYU Law Review

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …

Crossing The Dark And Fearful River: Monsanto, Pcbs, And Emerging Tort Theories, Keith Dornan, Jamie Hearn

American Indian Law Journal

guide the discussion.

Tribal, state, and city authorities are currently pursuing or have settled product liability, public nuisance, and other common law and statutory tort claims brought against Monsanto[1] for PCB contamination.^[2] “Sovereign-led” litigation melds traditional plaintiff common law tort litigation with sovereign-led environmental suits and is an emerging trend in environmental law.^[3] Tort claims against the manufacturers of contaminants ubiquitous in the environment give sovereigns a new angle for pursuing damages separate from a traditional statutory environmental claim under federal or state regulatory schemes, such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

The Mda Public Education Campaign: An X-Ray View, James Pond, Matt Maguy

The Journal of the Michigan Dental Association

The MDA Public Education Campaign has achieved significant engagement, surpassing previous milestones in video views and Find-a-Dentist searches. The article delves into the campaign's success, emphasizing its educational focus and strategic use of digital platforms. It explores the campaign's structure, target audience, and the integration of the Find-a-Dentist tool. With a shift from traditional TV commercials to digital advertising, the campaign's adaptability and real-time metrics are highlighted. The piece concludes by providing insights into the campaign's funding, oversight, and the content of the 2022 initiatives.

Civil Rights Catch-22s, Jonathan P. Feingold

Cardozo Law Review

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Chicago Journal of International Law

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or antidemocratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

The Problem Of Blackness In America: Becoming When The Being Never Comes To Be, Nkiru Anyaegbunam

Dissertations, Theses, and Capstone Projects

The problem of Blackness in America is a consequence of the historical reality and continued legacies of colonialism, the triangular trade and chattel slavery that have been facilitated through violence and capitalism. This thesis will argue that this problem that is pronounced through racialized institutional systems of violence such as mass incarceration and housing inequality, which disproportionately negatively impacts Black Americans is part of a larger discourse on the human and (mis)recognition. This violence has created a quintessential incompleteness for Black Americans who neither are recognized as citizens nor human. The problem of Blackness will be continuously grounded in this …

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen Pita Loor

Faculty Scholarship

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …

A Plea For Survival: Can The Return To Eco-Centrism Strengthen The Legal Protection Of Nature In Sri Lanka?, Asanka Edirisinghe, Michelle Mei Ling Lim

Research Collection Yong Pung How School Of Law

The right to life of all living beings and the duty of humans to co-exist with nature have been recognized in Sri Lankan tradition and religious practice for centuries. Yet, environmental destruction, degradation and pollution due to human activities have become a common phenomenon in contemporary Sri Lanka. Anthropocentric thinking pervades Sri Lankan jurisprudence. Laws and judicial decisions have largely failed to recognize the rights of nature to be protected for its relational and intrinsic values. There is also limited acknowledgement that the very survival of human beings depends on the continuous existence of Mother Earth. Significant shifts from human-centred …

Identity Capitalists: The Powerful Insiders Who Exploit Diversity To Maintain Inequality By Nancy Leong, Zara Narain

Osgoode Hall Law Journal

In her first book Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality (“Identity Capitalists”), Nancy Leong gifts readers the reflective space—and a new vocabulary—to process the interplay between power, identity, and inequality that animates interpersonal relationships and institutional practices embedded in American life.